Académique Documents
Professionnel Documents
Culture Documents
TENTH CIRCUIT
MAR 8 2001
PATRICK FISHER
Clerk
No. 99-1535
Defendants-Appellants.
and
COLORADO DEPARTMENT OF
HUMAN SERVICES; COLORADO
MENTAL HEALTH INSTITUTE AT
PUEBLO,
Defendants.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
*
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The Honorable Henry A. Politz, United States Court of Appeals for the
Fifth Circuit, sitting by designation.
**
Qualified Immunity
[i]f the defendant argues that she is entitled to qualified immunity under the plaintiffs
version of the facts because the plaintiff has not demonstrated a violation of clearly
established law, this Court may properly exercise jurisdiction over an interlocutory
appeal.5 Appellants herein advance that contention.
To accept a claim of qualified immunity, we first must decide whether the
plaintiffs sufficiently alleged that the defendants violated a statutory or constitutional
right, and if so, whether that right was clearly established and a reasonable person in the
defendants position would have known that his or her conduct violated that right.6 We
review de novo a lower courts denial of qualified immunity because an appeal of such
order presents issues of law.7 In the context of a 12(b)(6) motion to dismiss, our review
of the qualified immunity defense is limited to the pleadings.8 In assessing the pleadings,
we construe the allegations in the complaint, and any reasonable inferences to be drawn
therefrom, in favor of the petitioner.9 We do so, noting our recent rejection of the
DeAnzona v. City and County of Denver, 222 F.3d 1229, 1233-34 (10th
Cir. 2000) (citing Johnson v. Martin, 195 F.3d 1208, 1214 (10th Cir. 1999)).
5
Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998).
Romero v. Fay, 45 F.3d 1472 (10th Cir. 1995); see also Mick v. Brewer,
76 F.3d 1127 (10th Cir. 1996) (discussing principle that a district courts denial of
qualified immunity is appealable to the extent it presents issues of pure law).
7
See Sutton v. Utah State School for the Deaf and Blind, 173 F.3d 1226,
1236 (10th Cir. 1999).
9
-4-
10
11
12
See also Washington v. Harper, 494 U.S. 210, 227 (1990) (finding that
patients have a due process interest implicated by the unconsented administration
of antipsychotic medications absent a finding that they are a danger to themselves
or others); Walters v. Western State Hosp. 864 F.2d 695, 700 (10th Cir. 1988)
(discussing patients liberty interest in being forcibly detained without access to
outside family or friends).
13
-5-
right. As above noted, mere conclusionary allegations without specific facts will not
defeat the defense of qualified immunity. The amended complaint passes muster when
tested against this requirement.
Neiberger complains of a continuous pattern of substandard care, including
denial of his right to refuse treatment that is inappropriate for his needs, deprivation of
a physician-ordered, nutritionally adequate vegetarian diet, the forced discontinuance of
an educational program, and interference with his visitation and involvement of his
family in his care. Eldridge complains of being penalized and retaliated against for
refusing generic group therapy, being repeatedly subjected to restraints and seclusion
when he was neither dangerous to himself or others, prevented from conferring with
legal counsel and maintaining possession of his legal files, and the disregard of a court
order that he be allowed to continue his education.
Gardner alleges misdiagnosis and threats of involuntary psychotropic drugs, being
subjected to body searches by female staff contrary to hospital policy, and denial of
meaningful or timely response to grievances filed in accordance with hospital rules.
Finally, Jacobs asserts misdiagnosis of his condition due to personal conflicts with one
named doctor, that he remains in the maximum security unit despite findings by another
named doctor, that he has no behavior conflicts or evidence of any form of mental illness,
the lack of any formalized grievance system in the forensic unit, placement in seclusion
for challenging inappropriate treatment, unlawful pat-frisks by female staff, and
-6-
placement in an unsafe environment with a patient who had previously threatened him.
Finally, plaintiffs cite consultant reports commissioned by defendant Colorado
Department of Human Services. These reports detail the overcrowding and
understaffing at CMHI-P, the lack of training of staff in areas such as suicide prevention
and the treatment of the severely mentally ill population served by the maximumsecurity unit, and dangerously unsafe conditions. Plaintiffs also discuss surveys by the
Health Care Financing Administration finding serious staffing and other deficiencies at
CMHI-P which substantially limit the hospitals capacity to provide adequate care.
While these allegations do not contain specific dates and times, or intimate details
of each alleged infraction, they do describe adequately the various incidents and conduct
that constitute the deprivation. The allegations do more than merely identif[y] a clearly
established right and then alleg[e] that the defendant has violated it.14 In addition to
stating that defendants provided insufficient care or poor treatment, the allegations
note problems with the care, such as punishment for lodging complaints, inability to visit
with family or friends, and invasive searches by staff of the opposite sex. On balance, we
find sufficient factual allegations as to the constitutional violation issue. Plaintiffs
remaining Section 1983 claims do not state a violation of a clearly-established
14
Sawyer v. County of Creek, 908 F.2d 663, 665 (10th Cir. 1990).
-7-
constitutional right.15
2.
Our second inquiry focuses on whether the right allegedly violated is sufficiently
clear that a reasonable official would understand that what he is doing violates that
right.16 We find that plaintiffs have met this second requirement. Both Toerber and
Hawkins serve in high ranking positions within the health care administration in the state
of Colorado. A reasonable person in such a position should know that committed
individuals enjoy a constitutionally protected interest in conditions of reasonable care and
safety, and that allowing or implementing policies resulting in the acts alleged in the
complaint would violate that interest. We therefore conclude that plaintiffs
constitutional rights were clearly established and that reasonable persons in the
defendants positions should have and would have known that their conduct violated that
right.17
Defendants also urge dismissal by reading the plaintiffs complaint as based on
16
17
See Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516 (10th Cir.
1998).
-8-
respondeat superior liability rather than actual participation in the violation. We are not
persuaded. The complaint contains sufficient facts for establishment of defendants
personal liability. There are several allegations relating to defendants knowledge of the
improper treatment at CMHI-P, their acquiescence in such treatment, and their
supervisory roles over the implementation and administration of care at CMHI-P.18 These
allegations do not focus on respondeat superior liability but, rather, would place
responsibility for the alleged constitutional violations on the defendants directly in light
of their participation in the establishment of plaintiffs and other patients treatment
programs and overall living conditions at CMHI-P.
We conclude that the factual allegations in plaintiffs complaint are sufficient to
survive defendants 12(b)(6) motion to dismiss.
B.
Negligence
-9-
Defendants also appeal the district courts ruling denying their motion to dismiss
the claim for common law negligence. Under Colorado law, because defendants are
employees of a state entity, tort actions must comply with the Colorado Governmental
Immunity Act.19 The district court held that governmental immunity was waived under
the act because the complaint alleged negligence in the operation of a public hospital.20
Defendants assert various grounds for challenging the district courts decision, none of
which persuades us that the district courts order was in error.
At the outset, we note our agreement with the district court that plaintiffs
complaint contains sufficient allegations of individual negligence. Respondeat superior
liability is not implicated. Despite defendants urgent argument, we find no requirement
that a plaintiff show willful and wanton conduct on behalf of a defendant when the
alleged negligence involves the operation of a hospital. The statute at issue provides this
exemption.21
Finally, we conclude that the plaintiffs sufficiently complied with the CGIA notice
requirements. They filed a certificate of review22 which adequately complies with the
20
21
-10-
name and address of complainant and his attorney, (2) a concise statement of facts
underlying the claim, including the date, time, place, and circumstances of the act,
omission, or event complained of, (3) the name and address of any public
employee involved, (4) a concise statement of the nature and extent of the injury,
and (5) a statement of the monetary damages requested. Plaintiffs certificate met
these requirements.
This section requires that attorneys declare that they have consulted with
a person who has expertise in the area at issue and that such expert has reviewed
the case and concluded that the filing of the claim does not lack substantial
justification. See COLO. REV. STAT. 13-20-602(3)(a)(I) & (II) (1990). The
statute does not require the naming of any particular licensed professional because
the instant complaint charges the defendants with negligence.
23
24
25
26
defendants assertion of qualified immunity and that their notice complied with the
requirements of the CGIA. The judgment appealed is AFFIRMED.
Entered for the Court
Henry A. Politz
Circuit Judge
-12-